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From Discontented Barons to Predator Drones

MANY HISTORY BOOKS erroneously report that King John signed Magna Carta on June 15, 1215, at Runnymede. In fact, King John never “signed” Magna Carta; it was sealed, and it happened on June 19, not June 15. Nonetheless, June 15 has become known as Magna Carta Day, and indeed that’s the day Queen Elizabeth came to Runnymede to celebrate the 800th anniversary. John’s fundamental promise was that “no freeman shall be taken or imprisoned […] except by the lawful judgment of his peers or by the law of the land.” As Winston Churchill elaborated centuries later, “Government must henceforth mean something more than the arbitrary rule of any man, and custom and the law must stand even above the King.” In 1819, the US Supreme Court observed that Magna Carta “intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.”

The historic 800th anniversary is being commemorated in England, the United States, and elsewhere, and several new books explore the momentous events that precipitated Magna Carta and the impact it has had over the centuries, and continues to have, including in current debates over indefinite detention, torture, and targeted drone killings.

The deeper that one goes in studying Magna Carta, beyond the uncritical and largely superficial treatment it receives in high school and popular culture, the more one begins to understand that it is the myth and the reinterpretation of Magna Carta over time that have influenced later generations far more than what actually happened in June 1215.

(As an aside, let’s address its name: most scholars and historians call it “Magna Carta,” rather than “the Magna Carta,” because it was written in Latin, which has no definitive article.)

It would be unfair to trivialize Magna Carta: The Foundation of Freedom 1215–2015, edited by Nicholas Vincent, as a “coffee table book,” although at first glance this glossy, oversized, beautifully illustrated book could be mistaken for one. In fact, this is an intelligent and sophisticated examination of Magna Carta, assembled by Vincent — a professor of medieval history at the University of East Anglia, and a consultant for several Magna Carta projects in the UK, US, and Australia — along with five other accomplished contributors.

Magna Carta and the Rule of Law is the American Bar Association’s definitive work on this subject, with comprehensive chapters on the making of Magna Carta and its relationship to the rule of law, sovereign immunity, the US Constitution, Supreme Court jurisprudence, executive power, habeas corpus, religious freedom, international law, modern commonwealth law, and civil and canon law, with a separate chapter on the Charter of the Forest. The book is extremely helpful because it reprints the Coronation Charter of Henry I; the Articles of the Barons; the 1215, 1216, 1217, and 1225 versions of Magna Carta; the 1297 Confirmation; the US Constitution and Bill of Rights; and a chronology of Magna Carta and related events. The American Bar Association (ABA) has taken a keen interest in Magna Carta: it dedicated a monument in Runnymede in 1957 and is now organizing a series of lectures and events in London in June 2015.

Anyone looking for an engaging history of the tumultuous events leading up to Magna Carta will enjoy Stephen Church’s King John: And the Road to Magna Carta, although its treatment of the Great Charter itself is quite brief.

In the Shadow of the Great Charter: Common Law Constitutionalism and the Magna Carta, by Robert M. Pallitto, is well suited for readers who are comfortable with a thorough legal analysis of the theory of common law constitutionalism. Pallitto makes a distinct contribution to this field in his discussion of how the fundamental principles, which have come to be associated with Magna Carta, relate to habeas corpus and the War on Terror.

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All great moments in history are grounded in a very particular confluence of forces: the key actors, whatever their beliefs and ambitions, confront various forms of power, including political, religious, intellectual, economic, or social, which they provoke and which are imposed upon them. King John, who was crowned in 1199, was the youngest son of King Henry II and his queen, Eleanor of Aquitaine, the most charismatic couple of mid-12th-century Europe, who ruled a vast kingdom that stretched from the Pyrenees in the south of France to the borders of Scotland. By 1204, John had lost Normandy, Anjou, and the northern part of Aquitaine, and by his death in 1216, he had even lost control of London, Westminster, and the south of England. His relations with Pope Innocent III deteriorated during his reign so badly that in 1208 the Pope imposed an interdict on John’s kingdom that prohibited church services, and in 1209 took the extraordinary step of excommunicating King John.

To fend off his enemies, foreign and domestic, and to fund his desperate attempts to regain lost territories, King John had to raise vast sums of money from his barons and draft legions of soldiers. He imposed special taxes on Jews and imprisoned and tortured them into compliance. Under almost constant siege, he acted in brutal and despotic ways toward anyone he saw as a threat to his authority, sending enemies, without charges and without trial, to the infamous Tower of London, where most were tortured and killed.

By 1213, the barons were in open revolt against John’s tyrannical rule. John could not fight a civil war and continue to remain in open conflict with Pope Innocent. He was forced to hand over his kingdoms of England and Ireland to the Pope, from whom he would now only hold them in fief, and he was forced to accept the Pope’s choice of Stephen Langton as Archbishop of Canterbury, who in return lifted John’s excommunication.

Emboldened by his return to papal favor, John mounted a renewed invasion of France, only to find that many barons refused to join him. He suffered a humiliating defeat and returned to England, weakened and discredited.

In November 1214, the barons, fed up with John’s tyrannical, secretive, and greedy rule, and fearing the erosion of their own wealth and power, gathered in secret to plot against their king. They were joined by Langton, who brought with him a copy of King Henry I’s venerable Coronation Charter, issued on August 5, 1100, in which Henry promised to “take away all the bad customs by which the kingdom of England was unjustly oppressed.” On the high alter of St. Edmund’s monastery, each baron swore that if John refused to confirm the liberties contained in the Coronation Charter, they would go into open rebellion against him.

In January 1215, John met with a delegation of discontented barons, who demanded that he confirm Henry I’s charter, which “stood for the liberty of the Church and the kingdom.” John played for time and agreed to give his answer by April 26. But the situation got worse, and the barons had drafted what is called the Unknown Charter, which contained an imperfect transcription of the Coronation Charter, followed by 12 further clauses outlining several of the barons’ demands. The first clause states: “King John concedes that he will not take a man without judgment, nor accept anything for doing justice and will not do injustice.”

King John was hardly idle during this period; he was making countermoves of his own to blunt the barons’ demands. Eventually, on May 9 and 10, 1215, he issued two documents. The first was a charter proposing that the barons’ case should be brought before Pope Innocent, who would act as arbiter. Given that the Pope was now avowedly on John’s side, this transparent attempt to settle the dispute would hardly mollify the barons. In the second document, King John agreed that while their negotiations were ongoing, he would not move against the barons with force, and he would only proceed “by the law of our realm or by the judgment of your peers in our court” — language almost identical to this would appear in Magna Carta a month later.

When the barons refused arbitration before the Pope, King John began confiscating their land and civil war broke out. On May 17 the barons marched into the city of London, a symbolic hub of power, where they were welcomed by its citizens. There they made a sworn association that neither the barons nor the Londoners would make peace with John without the agreement of the other.

Meanwhile, peace negotiations continued, and by June 10 a document entitled the “Articles of the Barons” emerged, signaling a shaky truce between the adversaries. It was headed, “these are the articles for which the barons petition and which the lord king concedes.” Written in the hand of one of the king’s Chancery scribes and sealed with the king’s Great Seal, it qualified as an official document, signifying that the king had authorized its content. The Articles represent a historic example of petitioning government for redress of grievances.

Many history books (including Pallitto’s In the Shadow of the Great Charter) erroneously report that King John signed Magna Carta on June 15, 1215, at Runnymede. In fact, Magna Carta was never “signed”; it was sealed, and it happened on June 19, not June 15. What did happen on June 15 at Runnymede was that proxies for the king and the barons announced agreement in principle. On June 19, at Runnymede, the king approved Magna Carta, and the barons, performing the physical act of homage, swore fealty to him and his heirs.

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Magna Carta contains 63 chapters, which range in importance from mundane agreements on arcane matters to the lofty provisions for which it has become famous. The barons extracted promises from King John limiting the fees he could charge for inheritances, wardships, widow’s dowers, scutage (payments made by barons in lieu of providing knights for the king’s army), and other practical issues, all of which arose from specific sets of grievances. At the time, these provisions may well have been the most important to the barons, but today they are largely reduced to mere footnotes.

The fundamental principle for which Magna Carta is most remembered is its provision that everyone, even a king or a president, is subject to the rule of law as established in a written instrument. It begins with a respectful nod to John’s protector, Pope Innocent, guaranteeing that “the English Church is to be free, and to have its full rights and its liberties intact.” And in a nod to the English capital, it promises that “the city of London is to have all its ancient liberties and free customs,” thereafter making the same promise to “all other cities, boroughs, towns and ports.”

In a preamble, the king grants “to all the free men of our kingdom, for ourselves and our heirs in perpetuity, all the following liberties, for them and their heirs.” But over time it would be Chapters 39, 40, and 61 that would come to represent the spirit of Magna Carta, the ideas for which it is most remembered. Chapter 39 reads:

No freeman shall be arrested or imprisoned or deprived of his freehold or outlawed or banished or in any way ruined, nor will we take or order action against him, except by the lawful judgment of his equals and according to the law of the land.

Chapter 40 reads:

To no one will we sell, to no one will we refuse or delay right or justice.

In these two chapters we see the king subjecting himself (and, based on the preamble, all future monarchs) to “the law of the land,” which over time would become known as Due Process of Law. Thus, instead of the king being above the law or even being the law itself, the law is above the king. And these chapters, taken together, also guarantee a speedy trial by a jury of one’s peers.

But the barons understood that previous kings, including Henry I in his Coronation Charter, had made and broken similar promises. Therefore, they insisted on including a security provision, which is found in Chapter 61. Here King John acknowledges that he has “conceded all the above things (from reverence) for God, for the reform of our kingdom and the better quieting of the discord that has sprung up between us and our barons.” What’s more, since he wishes these things “to flourish unimpaired and unshaken for ever,” he agrees to a “guarantee”: the barons shall choose any 25 barons who are “to observe, maintain and secure the observance of the peace and rights which we have conceded and confirmed to them by this present charter of ours.”

We need to pause to fully digest the revolutionary nature of this concession. Not only did the King of England grant various rights and liberties, he agreed to the creation of an entirely separate institution to monitor and enforce his compliance with his promises. One commentator called this “surely the most fantastic surrender of any English king to his subjects.”

In particular, Chapter 61 provides (and is worth quoting in full) that if

we or our chief Justiciar or our bailiffs or any of our servants in any way do wrong to anyone, or transgress any of the articles of peace or security, and the wrong doing has been demonstrated to four of the aforesaid twenty-five barons, those four barons shall come to us or our chief Justiciar, (if we are out of the kingdom), and laying before us the grievance, shall ask that we will have it redressed without delay. And if we, or our chief Justiciar (should we be out of the kingdom) do not redress the grievance within forty days of the time when it was brought to the notice of us or our chief Justiciar (should we be out of the kingdom), the aforesaid four barons shall refer the case to the rest of the twenty-five barons and those twenty-five barons with the whole community of the land shall distrain and distress us in every way they can, namely by taking of castles, estates and possessions, and in such other ways as they can, excepting (attack on) our person and those of our queen and of our children until, in their judgment, satisfaction has been secured; and when satisfaction has been secured let them behave towards us as they did before. And let anyone in the country who wishes to do so take an oath to obey the orders of the said twenty-five barons in the execution of all the aforesaid matters and with them to oppress us to the best of his ability, and we publicly and freely give permission for the taking the oath to anyone who wishes to take it, and we will never prohibit anyone from taking it.

Perhaps by winning this unprecedented authority to sit in judgment of their own king, the barons had pressed their advantage too far, because the official life of this document, which UNESCO has boldly called “the cornerstone of English liberty, law and democracy,” was actually only 66 days.

At John’s request, on August 24, 1215, the Pope, to whom the king was truly answerable since he held the kingdom in fief, nullified Magna Carta. The peace treaty was over and the parties resumed their bloody civil war. On October 19, 1216, his kingdom in ruins and suffering from the effects of dysentery, King John died at age 49.

That might have been the last we ever heard of this short-lived charter, but ironically, King John’s early death and the abrupt end to his disastrous reign rescued Magna Carta and set the stage for it to become the hallowed symbol it is today. John was succeeded by his son Henry, who, at age nine, was crowned King Henry III on October 28, 1216. On the advice of his guardian William Marshal, on November 12, 1216, the child-king promptly reissued Magna Carta, retaining the key provisions (such as Chapters 39 and 40), but conspicuously eliminating Chapter 61. In the words of Stephen Church in his biography of King John, it was only then that Magna Carta “truly entered the political arena as a document of lasting consequence [… and as] a primitive written constitution that could serve as a yardstick against which the actions of the king and his officers could be measured.”

Magna Carta would be reissued in 1217, 1225, and 1297; it would be translated from Latin into English and given statutory status in 1300. From the 13th century on, barons, litigants, and judges cited Magna Carta in support of their legal claims and decisions.

In the 17th century, the legend of Magna Carta was given an immense boost by Sir Edward Coke, a member of Parliament and Chief Justice of the Court of Common Pleas, who viewed it as an affirmation of ancient English liberties. In 1621, when Coke invoked Magna Carta to complain about the imbalance between the king and Parliament, King James I sentenced him to seven months in the Tower of London for treason. Coke’s unjust imprisonment contributed to a rising tide of opposition to the monarchy. From the execution of Charles I in 1649 to the Glorious Revolution in 1688, England experienced parliamentary sovereignty. According to Michael Dillon, chair and professor of political science at La Salle University, “the primary voice creating the myth or legend of Magna Carta as the great underpinning for the events taking place in the 17th century was Coke.”

Coke’s rulings and writings had a profound impact in the American colonies. As historian Geoffrey Hindley puts it, “for American history, the influence of Magna Carta lay not in the encounter of King John and the barons at Runnymede but in Coke’s colorful if essentially inaccurate version of it and his exalted conception of the common law.” In Philadelphia in 1687, William Penn published the first text of Magna Carta printed on this side of the Atlantic. In 1770, William Blackstone’s Commentaries on the Laws of England were published in the colonies, in which he traced the rights to personal property, individual liberty, and private property to Magna Carta.

After declaring independence in 1776, nearly all of the new states included in their constitutions declarations of rights with provisions much like Chapter 39 of the 1215 Magna Carta. Similarly, several amendments of the Bill of Rights added to the US Constitution in 1791 echo key provisions of Magna Carta, including the Fifth Amendment, which guarantees that no person shall be “deprived of life, liberty, or property without due process of law”; the Sixth Amendment, which guarantees “the right to a speedy and public trial, by an impartial jury”; and the Eighth Amendment, which prohibits “excessive fines.”

In its 225-year history, the US Supreme Court has referred to Magna Carta in more than 170 cases, not as binding legal precedent, but for its symbolic importance. In a speech in 1931, Benjamin Cardozo, shortly before he was elevated to the Court, said that what lives in Magna Carta today is “the myth that has gathered around it — the things that it has come to stand for in the thought of successive generations — not the pristine core within, but the incrustations that have formed without.”

Speaking at Runnymede at the 1985 rededication of the ABA memorial, Justice William J. Brennan Jr. said that throughout the history of the Court, “the bedrock principles of Magna Carta have had and continue to have a profound influence over the Justices’ deliberations.” In addition to entrenching safeguards in a written constitution, Brennan noted that Magna Carta was “both a substantive and symbolic contribution to the ongoing development and refinement of principles that protect the fundamental rights and liberties of the individual; it set forth certain specific guarantees that are the cornerstone of our modern concepts of liberty.”

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Tragically, everything that Magna Carta has come to symbolize has been severely tested in the War on Terror, as the United States government — first under President George W. Bush and now under President Barack Obama — has resorted to torture, indefinite detentions, and extrajudicial targeted assassinations by killer drones. These brutal instruments recall the abuse of power that led to King John having to accept Magna Carta.

In 2008, in Boumediene v. Bush, one in a series of Supreme Court decisions rebuffing President Bush’s attempts to place Guantanamo detainees beyond the reach of the law, Justice Anthony Kennedy wrote that “Magna Carta decreed that no man would be imprisoned contrary to the law of the land” and that “gradually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled.” Kennedy added that “from an early date it was understood that the king, too, was subject to the law. As the writers said of Magna Carta, ‘it means this, that the king is and shall be below the law.’”

Our celebration of Magna Carta’s 800th anniversary should not be mindlessly triumphal. It is seriously qualified by the realization that, like tyrannical King John eight centuries ago, Presidents Bush and Obama have acted above the law, and that spineless Congresses for almost 14 years have done little or nothing to restrain the exercise of lawless executive power.

The Magna Carta we celebrate guaranteed that no freeman would be “arrested or imprisoned […] except by the lawful judgment of his equals and according to the law of the land,” and no one would be refused or delayed “right or justice,” yet that is exactly what President Bush did to the 779 men imprisoned at Guantanamo and the unknown number who have been held in CIA black sites around the world.

The Magna Carta we celebrate guaranteed that no freeman would be “outlawed or banished or in any way ruined, nor will we take or order action against him, except by the lawful judgment of his equals and according to the law of the land,” and no one would be refused or delayed “right or justice.” Yet that is exactly what President Bush did in using indefinite detention and ordering the use of waterboarding, “rectal feeding,” and other brutal forms of torture and cruel, inhumane, and degrading treatment.

The Magna Carta we celebrate guaranteed that no freeman would be “outlawed […] or in any way ruined, nor will we take or order action against him, except by the lawful judgment of his equals and according to the law of the land,” and no one would be refused or delayed “right or justice,” yet that is exactly what President Obama has done (and continues to do) by ordering targeted drone attacks in various countries with whom we are not at war, killing at least 2,464 individuals, without charges, lawyers, trials, or convictions, including at least 314 civilians in Pakistan, Yemen, and Somalia, nearly nine times more than under President Bush.

Pallitto put it this way:

If the original purpose of the Magna Carta’s Article 39 was to restrain executive power by the rule of law, it is difficult to imagine a more direct repudiation of that purpose than the targeted killing program, which makes lethal force lawful if launched by an internal executive deliberation.

In the concluding chapter of Magna Carta: The Foundation of Freedom 1215–2015, Richard Goldstone, former member of the Supreme Court of South Africa and Chief Prosecutor of the UN International Tribunals for the former Yugoslavia and Rwanda, writes that:

Terrorism and the reaction to it by democracies demonstrate yet again the need for the principles that underlie Magna Carta to be constantly nurtured and protected. If terrorism is indeed to remain a permanent feature of life in the twenty-first century, then the stark choice facing democracies is whether to abandon these principles or to find means of fighting terrorism that are consistent with the rule of law.

Instead of blindly celebrating the 800th anniversary of Magna Carta, as if abuses of power and the exercise of arbitrary authority are a thing of the past, we should instead honor the spirit of that historic charter by ensuring that our leaders govern only according to the rule of law and are held accountable if they do not.